ICC’s Bensouda reviewing judges’ decision vacating DP Ruto, Sang case

International Criminal Court (ICC) Prosecutor Fatou Bensouda has said the prosecution is currently in the process of carefully assessing the Trial Chamber’s decision to vacate the charges against Deputy President William Ruto and journalist Joshua Arap Sang to determine the appropriate next steps.

In a statement, Bensouda said Prosecutions before the ICC can stand or fall on the willingness of witnesses to come forward and tell their story in the courtroom. 

“We regret that due to deliberate and concerted efforts to derail this case through witness interference, the Judges have been prevented from determining the guilt or innocence of the Accused on the full merits of the case.  What is also troubling is that the onslaught against this case has – for now – denied the victims of the 2007-2008 election violence in Kenya the justice they so rightly deserve,” read the statement in part.

According to Bensouda, 17 witnesses who had agreed to testify against the Accused subsequently withdrew their cooperation with the court. 

“Tuesday’s decision sends a strong message: witness interference and perverting the cause of justice will not be tolerated at the ICC,” said Bensouda.

Bensouda in her statement claimed prosecution witnesses in this case were subjected to intimidation, social isolation and threats to prevent them from testifying. 

“In the end, the Trial Chamber was in effect prevented from having the opportunity to assess the true merits of the Prosecution case. It has been a difficult journey since the Office of the Prosecutor opened its investigation of the 2007-08 Post Election Violence in Kenya in March 2010. Our one, consistent objective has always been to secure independent and impartial justice for the many victims of that violence,” further read the statement.  

The ICC prosecutor expressed frustration saying the resolve to unveil the truth and advance the course of justice in Kenya, “was ultimately eroded by a ‘perfect storm’ of witness interference and intense politicization of the Court’s legal mandate and work.” 

“There was a relentless campaign to identify individuals who could serve as Prosecution witnesses in this case and ensure that they would not testify.  This project of intimidation preceded the start of our investigation in Kenya, intensified in the weeks leading up to the beginning of the trial, and continued throughout the life of the case.”

“As a result, potential witnesses told us they were too afraid to commit to testifying against the Accused.  Others, who initially gave us accounts of what they saw during the post-election period, subsequently recanted their evidence, and declined to continue cooperating with the Court,” she added.

Bensouda added that in addition, at public prayer rallies, local politicians and community leaders branded Prosecution witnesses as liars who had all given false evidence. 

“On social media, anonymous bloggers engaged in a steady stream of speculation about the identity of protected witnesses.  This speculation frequently devolved into vitriolic commentary about witnesses’ motives for cooperating with the Court.”

According to Bensouda, the prosecution sought to counter interference with the administration of justice in this case without much success.

“We obtained from the Judges additional protective measures for witnesses. Following our investigations, we also sought and obtained warrants of arrest for Walter Osapiri Barasa, Paul Gicheru and Phillip Kipkoech Bett, on charges of obstructing the course of justice. None of the three suspects, who have been charged by the Court with obstructing the course of justice in this case, has yet been surrendered to the Court by the Government of Kenya,” read the statement.

Bensouda is now calling on the Government of Kenya to fulfil their obligations under the Rome Statute, and surrender these three suspects to the Court without further delay.

“The witness interference and hostile environment referenced in Tuesday’s decision underscore the necessity for the Government of Kenya to honour its obligations and surrender these suspects to the custody of the Court,” read the statement.

According to Bensouda, the Government of Kenya would have been a critical ally and partner of the Office, since the case was about crimes committed against Kenyans, crimes defined and proscribed by a treaty ratified by the Government of Kenya. 

“However, despite repeated assurances of cooperation with the Court, the Government of Kenya provided only selective assistance to the Prosecution.  The net result is that my Office did not have full access to documents and records that may have had probative value or been able to further shed light on the truth.”